Illinois General Assembly - Full Text of SB3263
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Full Text of SB3263  98th General Assembly

SB3263 98TH GENERAL ASSEMBLY

  
  

 


 
98TH GENERAL ASSEMBLY
State of Illinois
2013 and 2014
SB3263

 

Introduced 2/14/2014, by Sen. John M. Sullivan

 

SYNOPSIS AS INTRODUCED:
 
New Act
30 ILCS 105/5.855 new
55 ILCS 5/5-12020

    Creates the Wind Energy Facilities Construction and Deconstruction Act. Requires a commercial wind energy operator of a commercial wind energy facility located on land owned by another to enter into an agricultural impact mitigation agreement with the Department of Agriculture. Provides that the commercial wind energy operator is responsible for deconstruction of a commercial wind energy facility. Requires the filing of a deconstruction plan detailing the cost of deconstruction per turbine. Provides that the plan must be prepared by an independent third party. Requires the Department of Agriculture to require reclamation bonds for deconstruction. Contains provisions concerning public informational meetings, final determinations related to approval of siting, and deconstruction activities. Amends the State Finance Act to create the Wind Energy Administration Fund as a special fund in the State treasure. Amends the Counties Code. Deletes language allowing a county to establish standards for wind farms and electric-generating wind devices. Effective immediately.


LRB098 19413 RPS 54573 b

FISCAL NOTE ACT MAY APPLY

 

 

A BILL FOR

 

SB3263LRB098 19413 RPS 54573 b

1    AN ACT concerning regulation.
 
2    Be it enacted by the People of the State of Illinois,
3represented in the General Assembly:
 
4    Section 1. Short title. This Act may be cited as the Wind
5Energy Facilities Construction and Deconstruction Act.
 
6    Section 5. Purposes. The primary purposes of this Act are
7to promote the State's welfare by protecting landowners during
8the construction and deconstruction of commercial wind energy
9facilities, provide adequate protection for the public health,
10safety, and welfare during the operation of wind energy
11facilities, and allow for reasonable development of commercial
12wind energy facilities.
 
13    Section 10. Definitions. As used in this Act:
14    "Agricultural impact mitigation agreement" means an
15agreement between the commercial wind energy operator and the
16Illinois Department of Agriculture.
17    "Commercial wind energy facility" means a wind energy
18conversion facility of equal or greater than 500 kilowatts in
19total nameplate generating capacity that has not already been
20constructed prior to the effective date of this Act.
21    "Commercial wind energy operator" means a private
22commercial enterprise that owns or operates a commercial wind

 

 

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1energy facility of equal to or greater than 500 kilowatts in
2total nameplate capacity.
3    "Deconstruction" means the removal of a wind energy
4generation facility from the property of a landowner and the
5restoration of that property as provided in the agricultural
6impact mitigation agreement.
7    "Department" means the Illinois Department of Agriculture.
8    "Landowner" means any person (i) with an ownership interest
9in property that is used for agricultural purposes and (ii)
10that is party to an underlying agreement.
11    "Underlying agreement" means the written or oral agreement
12with a landowner, including, but not limited to, an agreement
13for an easement, option, lease, or license, under the terms of
14which another person has constructed, constructs, or intends to
15construct a commercial wind energy facility on the property of
16the landowner.
17    "Wind turbine" means a wind turbine of equal to or greater
18than 500 kilowatts in total nameplate generating capacity.
 
19    Section 15. Agricultural impact mitigation agreement.
20    (a) A commercial wind energy operator of a commercial wind
21energy facility located on landowner property shall enter into
22an agricultural impact mitigation agreement with the
23Department outlining construction and deconstruction standards
24and policies designed to preserve the integrity of any
25agricultural land that is impacted by commercial wind energy

 

 

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1facility construction and deconstruction. This requirement
2does not apply to commercial wind energy facilities already
3constructed prior to the effective date of this Act.
4    (b) The agricultural impact mitigation agreement shall
5address such items as access roads, construction staging and
6storage areas, excavation and backfill, protection of
7agricultural drainage tiles, wind turbine foundations, wind
8turbine erection, restoration of agricultural land affected by
9all construction and deconstruction, indemnification of
10landowners, monitoring, and remediation.
11    (c) The agricultural impact mitigation agreement shall be
12entered into no less than 180 days prior to construction. The
13agricultural impact mitigation agreement is binding on any
14subsequent commercial wind energy operator that takes
15ownership of the commercial wind energy facility that is the
16subject of the agreement.
 
17    Section 20. Filing notice of intent to construct.
18    (a) The Department shall regulate the siting of commercial
19wind energy facilities in unincorporated areas of a county
20outside of the zoning jurisdiction of a municipality and the
211.5 mile radius surrounding the zoning jurisdiction of a
22municipality.
23    (b) A commercial wind energy operator shall file a notice
24of intent to construct for a commercial wind energy facility
25with the Department no less than 180 days prior to

 

 

SB3263- 4 -LRB098 19413 RPS 54573 b

1construction.
2    (c) A commercial wind energy operator applying for siting
3approval shall submit a construction plan at the same time as
4its notice of intent to construct to the Department with
5sufficient details describing how the proposed commercial wind
6energy facility complies with this Act. The Department may
7grant a final determination of siting approval if the proposed
8commercial wind energy facility meets the following criteria:
9        (1) the commercial wind energy facility complies with
10    the requirement of Section 15 of this Act;
11        (2) the commercial wind energy facility complies with
12    the requirements of Section 35 of this Act;
13        (3) the commercial wind energy facility complies with
14    Illinois Pollution Control Board noise standards;
15        (4) the location of each wind turbine in the commercial
16    wind energy facility will, to the extent reasonably
17    practicable, minimize shadow flicker at a residence or
18    occupied building;
19        (5) the commercial wind energy facility will be
20    constructed in such a way to minimize and mitigate signal
21    interference for personal and commercial communications;
22        (6) the commercial wind energy facility is designed,
23    located, and proposed to be operated so that the public
24    health, safety, and welfare shall be protected.
25    (d) Any commercial wind energy operator who fails to file a
26notice of intent to construct form or construction plans with

 

 

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1the Department prior to commencing construction, upon being
2discovered by the Department, shall be subject to an
3administrative hearing by the Department. The administrative
4law judge, upon determination of a failure to file the
5appropriate form, shall impose a civil administrative penalty
6in an amount no more than $10,000 and shall enter an
7administrative order directing that the commercial wind energy
8operator file the appropriate form within 10 business days
9after receiving notice from the Department. If, after receiving
10the administrative law judge's order to file, the commercial
11wind energy operator fails to file the appropriate form with
12the Department, the Department shall impose a civil
13administrative penalty in an amount no less than $10,000 and no
14more than $25,000 and shall enter an administrative order
15prohibiting the operation of the facility until the commercial
16wind energy operator is in compliance with this Act. Penalties
17under this subsection (d) not paid within 60 days after notice
18from the Department shall be submitted to the Attorney
19General's office or an approved private collection agency.
 
20    Section 25. Public informational meeting.
21    (a) Within 30 days after receiving a form giving notice of
22intent to construct a commercial wind energy facility, the
23Department shall send a copy of the notice form to the county
24board of the county in which the commercial wind energy
25facility is to be located and shall publish a public notice in

 

 

SB3263- 6 -LRB098 19413 RPS 54573 b

1a newspaper of general circulation within the county. After
2receiving a copy of the notice form from the Department, the
3county board may, at its discretion and within 30 days after
4receipt of the notice, request that the Department conduct an
5informational meeting concerning the proposed construction
6that is subject to this Section. In addition, during the
7county's 30-day review period, county residents may petition
8the county board of the county where the proposed new
9commercial wind energy facility will be located to request that
10the Department conduct an informational meeting. When
11petitioned by 75 or more of the county's residents who are
12registered voters, the county board shall request that the
13Department conduct an informational meeting. If the county
14board requests that the Department conduct the informational
15meeting, the Department shall conduct the informational
16meeting within 30 days after the county board's request. If the
17Department conducts such a meeting, it shall cause notice of
18the meeting to be published in a newspaper of general
19circulation in the county and in the State newspaper and shall
20send a copy of the notice to the county board. Upon receipt of
21the notice, the county board shall post the notice on the
22public informational board at the county courthouse at least 10
23days before the meeting. The commercial wind energy operator
24who submitted the notice of intent to construct to the
25Department shall appear at the meeting. At the meeting, the
26Department shall afford members of the public an opportunity to

 

 

SB3263- 7 -LRB098 19413 RPS 54573 b

1ask questions and present oral or written comments concerning
2the proposed construction of the commercial wind energy
3facility.
4    (b) At the informational meeting or within 30 days
5following the meeting, the county board shall submit an
6advisory, non-binding recommendation to the Department about
7the proposed new facility's construction in accordance with the
8applicable requirements of this Act. The advisory, non-binding
9recommendation shall contain at a minimum:
10        (1) a statement of whether the proposed facility
11    achieves or fails to achieve each of the siting criteria as
12    outlined in subsection (c) of Section 20; and
13        (2) a statement of the information and criteria used by
14    the county board in determining that the proposed
15    commercial wind energy facility met or failed to meet any
16    of the criteria described in subsection (c) of Section 20.
17    (c) When the county board requests an informational
18meeting, construction of the commercial wind energy facility
19shall not begin until after the informational meeting has been
20held, the Department has reviewed the county board's
21recommendation and replied to the recommendation indicating if
22the proposed new commercial wind energy facility is or will be
23in compliance with the requirements of the Act, and the
24commercial wind energy operator has received the Department's
25notice that all applicable requirements of this Act have been
26met.

 

 

SB3263- 8 -LRB098 19413 RPS 54573 b

1    (d) At the informational meeting for the proposed
2commercial wind energy facility, the Department shall receive
3evidence by testimony or otherwise on the following subjects:
4        (1) whether the commercial wind energy facility
5    complies with the requirement of Section 15 of this Act;
6        (2) whether the commercial wind energy facility
7    complies with the requirements of Section 35 of this Act;
8        (3) whether the commercial wind energy facility
9    complies with Illinois Pollution Control Board noise
10    standards;
11        (4) whether the location of each wind turbine in the
12    commercial wind energy facility will, to the extent
13    reasonably practicable, minimize shadow flicker at a
14    residence or occupied building;
15        (5) whether the commercial wind energy facility will be
16    constructed in such a way to minimize and mitigate signal
17    interference for personal and commercial communications;
18        (6) whether the commercial wind energy facility is
19    designed, located, and proposed to be operated so that the
20    public health, safety, and welfare shall be protected.
 
21    Section 30. Final determination.
22    (a) Within 60 calendar days after the close of the comment
23period under subsection (b) of Section 25, the Department shall
24determine if the provisions of the Act have been met and shall
25send notice to the commercial wind energy operator and the

 

 

SB3263- 9 -LRB098 19413 RPS 54573 b

1county board indicating that the siting of the commercial wind
2energy facility is approved and construction may proceed. If
3the Department finds that the provisions of the Act have not
4been met the Department shall send notice to the applicant that
5construction of the commercial wind energy facility is
6prohibited.
7    (b) If the Department finds that additional information or
8that specific changes are needed in order to assist the
9Department in making the determination under subsection (a) of
10this Section, the Department may request such information or
11changes from the commercial wind energy operator.
12    (c) If no informational meeting is held, the Department
13shall, within 60 calendar days following the end of the period
14for the county board to request an informational meeting,
15notify the owner or operator that construction may begin or
16that clarification is needed.
17    (d) If the commercial wind energy operator amends the
18commercial wind energy facility plans during the Department's
19review, the Department shall notify the county board, which may
20exercise its option of a public informational meeting pursuant
21to Section 25 of this Act.
 
22    Section 35. Deconstruction activities.
23    (a) The commercial wind energy operator is responsible for
24deconstruction of the commercial wind energy facility and for
25all costs associated with deconstruction of that facility and

 

 

SB3263- 10 -LRB098 19413 RPS 54573 b

1associated facilities.
2    (b) A commercial wind energy facility is presumed to be at
3the end of its useful life if (i) the commercial wind energy
4operator fails, for a period of 18 consecutive months, to
5operate a commercial wind energy facility for the purpose of
6which it was designed and installed and (ii) the commercial
7wind energy operator fails, for a period of 6 consecutive
8months, to pay the landowner moneys owed to him or her in
9accordance with the underlying agreement.
10    (c) The commercial wind energy operator shall begin
11deconstruction of the commercial wind energy facility within 8
12months after the time the facility or turbine reaches the end
13of its useful life. Deconstruction must be completed within 18
14months after the commercial wind energy facility reaches the
15end of its useful life.
16    (d) No less than 180 days prior to the beginning of
17construction, commercial wind energy operators shall file with
18the Department a plan that includes:
19        (1) a copy of the agricultural impact mitigation
20    agreement entered into by the owner or operator and the
21    Department;
22        (2) the estimated deconstruction cost per turbine, in
23    current dollars at the time of filing, for the proposed
24    commercial wind energy facility; and
25        (3) a comprehensive detailed description describing
26    how the commercial wind energy operator plans to pay for

 

 

SB3263- 11 -LRB098 19413 RPS 54573 b

1    the deconstruction of the commercial wind energy facility.
2    The plan shall be prepared by an independent third party at
3the commercial wind energy operator's expense. If the facility
4is to be constructed in phases commencing at periods of more
5than one year following each other, then the plan that involves
6each phase in which the commercial wind energy facility is to
7be constructed may be filed in separate portions, but each
8portion must be filed no less than 180 days prior to
9construction of each phase. The Department shall enter an order
10approving, modifying, or disapproving a plan submitted under
11this subsection (d).
12    (e) No less than 180 days prior to the beginning of
13construction of any commercial wind energy facility, the
14commercial wind energy operator shall file with the Department
15a reclamation bond that is acceptable to the Department to
16cover the anticipated costs of deconstruction of the commercial
17wind energy facility or any wind turbine thereon. The
18reclamation bond shall not release the surety from liability
19until the bond is replaced. In determining the anticipated
20costs of deconstruction, the Department shall take into
21account, among other things, the information provided under
22subsection (d), the number of wind turbines and related
23commercial wind energy facilities involved, the original
24construction costs of the commercial wind energy facilities,
25the size and capacity of the wind turbines, the salvage value
26of the commercial wind energy facilities, and the construction

 

 

SB3263- 12 -LRB098 19413 RPS 54573 b

1method and techniques for the wind turbines and other
2commercial wind energy facilities. The Department shall
3examine the reclamation bond and enter an order approving,
4modifying, or rejecting the reclamation bond. The Department
5shall reevaluate the anticipated costs of deconstruction of any
6commercial wind energy facility every 5 years after its initial
7assessment or if there is a change in the commercial wind
8energy facility's owner, operator, or reclamation bond, and
9based on that reevaluation may require changes in the level of
10reclamation bond required from the commercial wind energy
11operator. If the Department is unable to its satisfaction to
12perform any investigations necessary to enter an order
13approving any deconstruction plan filed by a commercial wind
14energy operator, then the Department may select persons
15independent of the commercial wind energy operator to conduct
16any necessary investigations and the commercial wind energy
17operator shall bear the cost of those investigations.
18    (f) If the commercial wind energy operator does not
19complete deconstruction, the Department may take such action as
20necessary to complete deconstruction, including drawing upon
21the financial assurance required in subsection (e).
22    (g) If there is a change in ownership of the wind energy
23facility, the commercial wind energy operator assuming
24ownership of the facility shall provide notice to the
25Department within 30 days of the change and the existing
26financial assurance requirements for the facility as required

 

 

SB3263- 13 -LRB098 19413 RPS 54573 b

1in subsection (e) shall apply to the new operator.
2    (h) The Department has no authority or responsibility for
3commercial wind facilities that have already been constructed
4prior to the effective date of this Act.
5    (i) The Department shall adopt rules that are necessary and
6appropriate for the implementation and administration of
7deconstruction activities as required under this Act.
8    (j) In addition to any authority granted to the Department
9under this Act, the Department is also authorized to impose
10reasonable filing fees and penalties. Fees and penalties
11collected under this Act shall be deposited into the Wind
12Energy Administration Fund, a special fund created in the State
13Treasury, to be used by the Department to fund the Department's
14compliance with the obligations imposed by this Section.
 
15    Section 40. Rules; fees and penalties.
16    (a) The Department has no authority or responsibility for
17commercial wind facilities that have already been constructed
18prior to the effective date of this Act.
19    (b) The Department shall adopt rules that are necessary and
20appropriate for the implementation and administration of
21activities as required under this Act.
22    (c) In addition to any authority granted to the Department
23under this Act, the Department is also authorized to impose
24reasonable filing fees and penalties. Fees and penalties
25collected under this Act shall be deposited into the Wind

 

 

SB3263- 14 -LRB098 19413 RPS 54573 b

1Energy Administration Fund, a special fund created in the State
2Treasury, to be used by the Department to fund the Department's
3compliance with the obligations imposed by this Act.
 
4    Section 90. The State Finance Act is amended by adding
5Section 5.855 as follows:
 
6    (30 ILCS 105/5.855 new)
7    Sec. 5.855. The Wind Energy Administration Fund.
 
8    Section 95. The Counties Code is amended by changing
9Section 5-12020 as follows:
 
10    (55 ILCS 5/5-12020)
11    Sec. 5-12020. Wind farms. A county may establish standards
12for wind farms and electric-generating wind devices. The
13standards may include, without limitation, the height of the
14devices and the number of devices that may be located within a
15geographic area. A county may also regulate the siting of wind
16farms and electric-generating wind devices in unincorporated
17areas of the county outside of the zoning jurisdiction of a
18municipality and the 1.5 mile radius surrounding the zoning
19jurisdiction of a municipality. There shall be at least one
20public hearing not more than 30 days prior to a siting decision
21by the county board. Notice of the hearing shall be published
22in a newspaper of general circulation in the county. Counties

 

 

SB3263- 15 -LRB098 19413 RPS 54573 b

1may allow test wind towers to be sited without formal approval
2by the county board. Any provision of a county zoning ordinance
3pertaining to wind farms that is in effect before the effective
4date of this amendatory Act of the 95th General Assembly may
5continue in effect notwithstanding any requirements of this
6Section.
7    A county may not require a wind tower or other renewable
8energy system that is used exclusively by an end user to be
9setback more than 1.1 times the height of the renewable energy
10system from the end user's property line.
11(Source: P.A. 95-203, eff. 8-16-07; 96-306, eff. 1-1-10;
1296-566, eff. 8-18-09; 96-1000, eff. 7-2-10.)
 
13    Section 99. Effective date. This Act takes effect upon
14becoming law.